Appeal from the Superior Court in Mohave County. The Honorable Steven F. Conn, Judge. No. CR201000834. Opinion of the Court of Appeals, Division One, 235 Ariz. 261, 330 P.3d 1018 (App. 2014) .
Appeal from the Superior Court in Mohave County, AFFIRMED. Opinion of the Court of Appeals, Division One, VACATED.
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Linley Wilson (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona.
Barbara Cook-Hamp, Legal Advocate, Jill L. Evans (argued), Deputy Legal Advocate, Kingman, Attorneys for Christepher E. Lua.
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, JUSTICES BERCH, BRUTINEL, and TIMMER joined.
PELANDER, VICE CHIEF JUSTICE.
¶1 We address in this case whether, in a prosecution for second-degree murder, the trial court may instruct the jury on manslaughter over a defendant's objection if the evidence supports a finding that the killing occurred " upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim" (" provocation manslaughter" ) under A.R.S. § 13-1103(A)(2). We hold that the court may give such an instruction.
¶2 Christepher Lua was tried on two counts of attempted second-degree murder and other charges. At the close of evidence, the trial court, over Lua's objection, instructed the jury on attempted provocation manslaughter,
which the court ruled was a lesser-included offense of attempted second-degree murder. Lua was convicted of both counts of attempted provocation manslaughter.
¶3 The court of appeals affirmed, holding that the jury instruction was proper because provocation manslaughter is a lesser-included offense of second-degree murder and the evidence supported the instruction, a point Lua did not dispute. State v. Lua, 235 Ariz. 261, 261 ¶ 1, 264 ¶ 12, 330 P.3d 1018, 1018, 1021 (App. 2014). In doing so, the court rejected Lua's argument that Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833 (2002), " stands for the proposition that provocation manslaughter is not a lesser-included offense of second-degree murder." Id. at 263 ¶ 8, 330 P.3d at 1020.
¶4 We granted review because the issue raised is recurring and of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3), of the ...